Rivera #239567 v. Michigan Department of Corrections et al

Filing 5

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILSON RIVERA,
Plaintiff,

Case No. 1:14-cv-214

v.

Honorable Robert J. Jonker

MICHIGAN DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983, the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 et seq., and
state law. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison
Litigation Reform Act (PLRA), PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required
to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune
from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read
Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept
Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v.
Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s
complaint for failure to state a claim against Defendant Jones Bey. The Court will allow the action
to proceed against Defendants Michigan Department of Corrections, Heyns, Finco, Martin, White,

Stephens, Wolfe, the Chaplaincy Advisory Council (CAC), and the unidentified members of the
CAC (“Unknown Part(y)(ies)”).
Discussion
I.

Factual allegations

Plaintiff Wilson Rivera is incarcerated by the Michigan Department of Corrections
(MDOC) and housed at the Michigan Reformatory (RMI). Plaintiff purports to bring a class action
on behalf of himself, prisoners James Goodman Bey and Ako Gilmore Bey, and other “Members of
the Moorish Science Temple of America -1928 Grand Body/Divine National Movement (A Class
of Moorish Moslems).” (Compl., docket #1, Page ID#1.) He sues the MDOC and the following
MDOC employees, in their individual and official capacities: Director Daniel Heyns, Deputy
Director Tom Finco, CFA Special Activities Coordinator Michael Martin, Chaplain Leroy D. White,
Mail Room Clerk D. Stephens, and Regional Prison Administrator Ray Wolfe. He also sues the
Chaplaincy Advisory Council (CAC)1 and the CAC members “who recommended denial of
[Plaintiff’s] constitutional, federal and state law rights[.]”2 (Id. at Page ID#14.) Finally, he sues
Robert Jones Bey, Grand Sheik of the Moorish Science Temple of America, Inc., located in
Washington, D.C.
Plaintiff alleges that he and prisoners Goodman Bey and Gilmore Bey are “Moorish
American Moslems” of the “Moorish Science Temple of America-1928 Grand Body/Moorish Divine
National Movement” (hereinafter, “MSTA-1928”). (Id. at Page ID#10.) On December 15, 2012,

1

The CAC is identified on the cover page of the complaint and on the Court’s docket as “Chaplain’s Advisory

Council.”
2

The individual members of the CAC are identified on the Court’s docket as “Unknown Part(y)(ies).”

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they presented to each Defendant a formal request for recognition of MSTA-1928 as a religious
group, in accordance with MDOC Policy Directive 05.03.150, which provides, in pertinent part:
H.

A Chaplaincy Advisory Council (CAC), comprised of representatives of
various faiths and denominations, shall serve in an advisory capacity to the
Department regarding religious policy and programming. The CFA Special
Activities Coordinator shall be a member of the CAC and ensure that all
major religions are represented. Organization and membership of the CAC
is governed by its constitution and bylaws. The CAC constitution and bylaws
shall not conflict with any Department policy or procedure and are subject to
the approval of the CFA Deputy Director.
...

J.

The Department recognizes religious groups for the purpose of identifying those
groups authorized to conduct group religious services and attend group religious
activities and for identifying authorized personal religious property prisoners
belonging to the religious group may possess . . . .
...

L.

A prisoner or group of prisoners belonging to a religious group not
recognized by the Department may request Department recognition of that
group by submitting a written request to the Warden, FOA Regional
Administrator, or designee, as appropriate. The request shall include
information regarding the group’s religious beliefs and practices. The Warden
or FOA Regional Administrator shall ensure the all requests and supporting
documents are referred to the CFA Special Activities Coordinator for review
through the appropriate chain of command. The CFA Special Activities
Coordinator shall present the material to the CAC for additional review, if
needed. The CFA Special Activities Coordinator shall forward his/her
recommendation, and that of the CAC if applicable, to the CFA Deputy
Director for a final determination.

M.

The CFA Deputy Director shall make the final decision as to whether a
religious group will be granted Department recognition and, if so, whether
group religious services and activities and personal religious property will be
allowed. The group shall be granted recognition if it is determined to be a
bona fide religious group with beliefs and practices not adequately
represented by an existing recognized religious group, based on any
recommendation received from the CAC. The decision whether to allow the
group to conduct group religious services and activities, and whether to allow
personal religious property, shall be based on whether the practice of the
religion or possession of the property item would pose a custody and security
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threat; the decision whether to allow the group to conduct group religious
services and activities also shall be based on the number of prisoners
identified as belonging to the religious group. All Regional Prison
Administrators (RPAs), Wardens, and FOA Regional Administrators shall be
advised of the final decision.
Id. (effective Sept. 20, 2007).
In their request, Plaintiff, Gilmore Bey and Goodman Bey also requested the right to
practice their religion in the following ways:
[T]o hold a Holy Day (Friday Moorish Jummah), Wednesday Moorish
Koranic Class Study Group and Sunday School Class meetings, to
receive our required and requested religious materials, emblems, Moorish
Islamic Mohammedan Charms, Circle Seven Charms, Star and Crescent
charms, Moorish Islamic prayer rugs, Moorish Dikr beads for prayer and
meditation and reflection, Moorish Kuffee, Moorish American flag pins,
Prophet Badge, religious wedding (obligation) bands, Moorish prayer oil
(Attar), Moorish Ramadan (fasting) from October 1st through October 31st
every year same dates and time, in Honor of our Great Prophet Ali of
America; [to] be allowed to enroll into our University of the Moorish Science
Temple of America–1928 (UMSTA) unmolested and receive any study
lessons and booklets, video lessons from our Spiritual Guides and Teaches,
our Grand Governors/Governess and Governors, Sheiks and Sheikesses,
audio tapes, DVD’s, and books approved by the [MSTA-1928] and
representation from our National Leadership, from Our Supreme Grand
Sheik, Dr. Ra Saadi El, Shaykh (Chief of Ministers), and all whom he and our
Supreme Grand Body appoints, anoints, and consecrates . . . .
(Compl., Page ID#16.) Defendants allegedly failed or refused to respond to the request.
Plaintiff complains that, because MSTA-1928 is not recognized by the MDOC, he
is required to worship with a different Moorish American group, “Moorish Science Temple of
America, Inc., (1934 Portion)” (hereinafter, “MSTA-1934”), which is the “only form of Islam”
currently recognized by the MDOC. (Id. at Page ID#17.) Plaintiff’s group, MSTA-1928, disagrees
with MSTA-1934 on several issues of religious doctrine and practice. Plaintiff contends that
requiring him to worship in a group service with members of MSTA-1934 results in “conflict with
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[his] making Salat, [his] three conical (mandatory Moorish American Moslem Prayers), giving
honors to [his] Leadership former and present, wearing the Moorish Kuffee, [and] giving the Friday
(Jummau) Holy Day Khutba,” among other things. (Id. at Page ID#19.)
Plaintiff further contends Defendant Stephens directed mail room staff to reject
religious materials that Plaintiff received in the mail in December 20123 and May 2013.4

In

addition, Chaplain White allegedly discriminated against Plaintiff by directing mail room staff to
reject materials sent to Plaintiff from his religious organization,5 refusing to process Plaintiff’s book
order for religious books,6 and threatening or intimidating Plaintiff for refusing to “tear up” a
“Religious Preference Form.”7 (Compl., Page ID#22.)
Plaintiff claims that Defendants’ actions violated his rights under the First, Eighth and
Fourteenth Amendments to the Constitution. In particular, he claims that Defendants have violated
his right under the First Amendment to exercise his religion, and have improperly favored the
MSTA-1934 group over his own, in violation of his right to equal protection under the Fourteenth
Amendment. He also contends that Defendants have been deliberately indifferent to his religious
rights, in violation of the Eighth Amendment. Plaintiff asserts that Defendants’ actions give rise to
claims under § 1983, RLUIPA and Michigan state law.

3

Plaintiff filed a prisoner grievance about the rejection of materials from MSTA-1928 in December 2012
(Grievance No. RMI 1212-2136-28I, docket #1-1, Page ID#39). The grievance was denied.
4

(See 5/1/2013 Notice of Package Mail Rejection, docket #1-1, Page ID#68.)

5
Defendant White’s conduct was the subject of Grievance No. RMI 1212-2135-27B, filed on December 17,
2012 (docket #1-1, Page ID#48).
6

See Grievance No. RMI 1212-2175-15Z, filed on December 21, 2012 (docket #1-1, Page ID#54).

7

See Grievance No. RMI 1212-2176-17D, filed on December 24, 2012 (docket #1-1, Page ID#61).

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As relief, Plaintiff requests an injunction requiring the MDOC to recognize MSTA1928 as a separate religious group and to allow members of that group to practice their faith in a
distinct manner, including: attending religious meetings on “Friday Holy Day,” attending
“Wednesday Koranic Study Class,” and celebrating “Moorish Islamic fast (Ramadan)” in the month
of October. (Compl., Page ID##30-31.) The requested injunction would also order the MDOC to
create a specific meal plan consistent with Plaintiff’s religious practices, with the required “Moorish
tea” during Ramadan, and to allow members of MSTA-1928 to have specific rugs, caps and oils for
use in prayer. (Id. at Page ID#31.) He also requests a declaratory judgment that Defendants have
violated his rights under federal and state law, as well as damages against each Defendant.
I.

Representation of Others / Class Certification

Though Plaintiff identifies other inmates as plaintiffs in this action, he is the only
person who signed the complaint. Plaintiff lacks standing to assert the constitutional rights of other
prisoners. Newsom v Norris, 888 F.2d 371, 381 (6th Cir. 1989); Raines v. Goedde, No. 92-3120,
1992 WL 188120, at *2 (6th Cir. Aug. 6, 1992). As a layman, Plaintiff may only represent himself
with respect to his individual claims, and may not act on behalf of other prisoners. Thus, absent
class certification, he may not bring claims on behalf of James Goodman Bey, Ako Gilmore Bey,
or any other prisoners.
For a case to proceed as a class action, the Court must be satisfied on a number of
grounds, including the adequacy of class representation. See Fed. R. Civ. P. 23(a)(4). It is well
established that pro se litigants are inappropriate representatives of the interests of others. See
Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th Cir. 2009) (citing Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)); see also Dodson v. Wilkinson, 304 F. App’x 434,
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438 (6th Cir. 2008); Ziegler v. Michigan, 59 F. App’x 622, 624 (6th Cir. 2003); Palasty v. Hawk,
15 F. App’x 197, 200 (6th Cir. 2001); Howard v. Dougan, No. 99–2232, 2000 WL 876770, at *1
(6th Cir. June 23, 2000); Ballard v. Campbell, No. 98–6156, 1999 WL 777435, at *1 (6th Cir. Sept.
21, 1999); Marr v. Michigan, No. 95–1794, 1996 WL 205582, at * 1 (6th Cir. Apr. 25, 1996).
Accordingly, because Plaintiff is an incarcerated, pro se litigant, the Court finds that he is not an
appropriate representative of a class. Therefore, the Court will deny class certification. Plaintiff may
proceed in this action only with respect to claims that pertain to himself.
II.

Immunity

Plaintiff may not maintain a § 1983 action against the MDOC. Regardless of the
form of relief requested, the states and their departments are immune under the Eleventh Amendment
from suit in the federal courts, unless the state has waived immunity or Congress has expressly
abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v.
Wigginton, 24 F.3d 823, 826 (6th Cir. 1993). Congress has not expressly abrogated Eleventh
Amendment immunity in § 1983, see Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of
Michigan has not consented to civil rights suits in federal court, Abick v. Michigan, 803 F.2d 874,
877 (6th Cir. 1986). The Sixth Circuit has specifically held that the MDOC is absolutely immune
from a suit under § 1983, because it is an “arm” of the State of Michigan. See, e.g., Turnboe v.
Stegall, No. 00-1182, 2000 WL1679478, at *2 (6th Cir. Nov. 1, 2000). In addition, the State of
Michigan (acting through the MDOC) is not a “person” within the meaning of § 1983. See Lapides

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v. Bd. of Regents, 535 U.S. 613 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989)). Consequently, Plaintiff’s § 1983 claim against the MDOC must be dismissed.
Plaintiff also seeks declaratory and injunctive relief as well as damages for alleged
violations of RLUIPA. Although that statute permits the recovery of “appropriate relief against a
government,” 42 U.S.C. § 2000cc–2(a), a claim for monetary damages against the State of Michigan
is not available under RLUIPA. In Sossamon v. Texas, ––– U.S. ––––, 131 S.Ct. 1651 (2011), the
Supreme Court held that RLUIPA did not abrogate sovereign immunity under the Eleventh
Amendment. Thus, Plaintiff’s RLUIPA claim for monetary damages against the MDOC and
Defendants Heyns, Finco, Martin, White, Stephens, and Wolfe in their official capacities are barred
by sovereign immunity. See Cardinal v. Metrish, 564 F.3d 794, 801 (6th Cir. 2009) (holding that
the Eleventh Amendment bars RLUIPA claims for money damages against states and state
employees in their official capacities).8 Consequently, the latter claims will be dismissed.9
III.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.

8

As noted by the Sixth Circuit, it has not ruled on whether damages are available under RLUIPA against
government defendants in their individual capacities. Selby v. Caruso, 734 F.3d 554, 561 (6th Cir. 2013) (“[O]ur court
has not ruled on whether RLUIPA authorizes a prisoner to pursue damages against prison officials who are sued in their
individual capacities . . . .”) (citing Heard v. Caruso, 351 F. App’x 1, 13 n.5 (6th Cir. 2009)). Every other appellate court
that has addressed the issue, however, has held that such relief is not available. See, e.g., Washington v. Gonyea, 731
F.3d 143, 145 (2d Cir. 2013); Stewart v. Beach, 701 F.3d 1322, 1334-35 (10th Cir. 2012); Sharp v. Johnson, 669 F.3d
144, 154-55 (3d Cir. 2012); Sossamon v. Lone Star State of Tex., 560 F.3d 316, 327-28 & n.23 (5th Cir. 2009), aff’d
on other grounds, 131 S. Ct. 1651 (2011); Nelson v. Miller, 570 F.3d 868, 889 (7th Cir. 2009); Rendelman v. Rouse,
569 F.3d 182, 188-89 (4th Cir. 2009); Smith v. Allen, 502 F.3d 1255, 1272-75 (11th Cir. 2007), abrogated on other
grounds by Sossamon, 131 S. Ct. at 1651.
9

At this stage of the proceedings, it is not clear whether the CAC is an arm of the State of Michigan, or whether
its members are state officials. Thus, the Court does not address whether the CAC or its members are protected by
immunity under the Eleventh Amendment.

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v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
A. Defendant Jones Bey
Plaintiff sues Robert Jones Bey, who is the Grand Sheik or “head” of “Moorish
Science Temple of America, Inc., (1934).” (See Compl., Page ID#15.) Defendant Jones Bey is not
mentioned by name in any of the allegations of the complaint, though Plaintiff contends that he
presented his request for recognition of MSTA-1928 to “each and every one of the defendants,”

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which would include Defendant Jones Bey. (See id. at Page ID#16.) Thus, Plaintiff apparently
claims that Jones Bey, like the other Defendants, failed or refused to respond to that request.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th
Cir. 1996). Plaintiff asserts in his complaint that Jones Bey acted under color of state law, but Jones
Bey is identified in the complaint as a representative or employee of a corporation located in
Washington, D.C. Thus, it appears that Jones Bey is a private party, rather than a government
official. In order for a private party’s conduct to be under color of state law, it must be “fairly
attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Street, 102 F.3d
at 814. There must be “a sufficiently close nexus between the State and the challenged action of [the
defendant] so that the action of the latter may be fairly treated as that of the State itself.” Skelton v.
Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991) (citing Jackson v. Metro. Edison Co., 419 U.S. 345,
351 (1974)). Plaintiff has not presented any allegations by which Defendant Jones Bey’s alleged
conduct could be fairly attributed to the State of Michigan. Jones Bey is not alleged to have any
connection to the MDOC, to the State of Michigan, or to any government entity capable of
recognizing Plaintiff’s request for recognition of MSTA-1928. Nor is Jones Bey alleged to have any
responsibility for, or ability to change, Plaintiff’s prison conditions. Thus, Plaintiff fails to state a
§ 1983 claim against him.
Plaintiff’s RLUIPA claim against Jones Bey fails for similar reasons. That statute
“protects institutionalized persons who are unable freely to attend to their religious needs and are
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therefore dependent on the government’s permission and accommodation for exercise of their
religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). It does so by limiting the burdens that a
government may place on a prisoner’s free exercise rights:
No government shall impose a substantial burden on the religious exercise of
a person residing in or confined to an institution, as defined in section 1997
of this title, even if the burden results from a rule of general applicability,
unless the government demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc–1(a). In § 2000cc–2(a), RLUIPA provides a cause of action against a
“government.” Id. (“A person may assert a violation of this chapter as a claim or defense in a
judicial proceeding and obtain appropriate relief against a government.”). RLUIPA defines
government, in relevant part, as “(i) a State, county, municipality, or other governmental entity
created under the authority of a State; (ii) any branch, department, agency, instrumentality, or official
of an entity listed in clause (i); and (iii) any other person acting under color of State law.” Id.
§ 2000cc–5 (4)(A)(i)-(iii). As indicated supra, it appears that Defendant Jones Bey is not a
government official, and Plaintiff has not presented facts to support his assertion that Defendant
Jones Bey acted under color of state law, let alone that Jones Bey imposed a substantial burden on
the exercise of Plaintiff’s religion. Thus, Plaintiff does not state a claim under RLUIPA against
Defendant Jones Bey.
Finally, though Plaintiff purports to assert claims under state law, the Court discerns
no basis for such a claim against Defendant Jones Bey. Plaintiff’s complaint concerns his conditions
of confinement in an MDOC facility. Plaintiff does not allege any involvement by Defendant Jones
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Bey in those conditions, or that Jones Bey has any authority to change them. Consequently,
Defendant Jones Bey will be dismissed from this action for failure to state a claim.
B. Other Defendants
At this stage of the proceedings, the Court finds that Plaintiff states a plausible claim
against the other Defendants under § 1983 and/or RLUIPA. Consequently, the Court will allow the
action to proceed as set forth herein against all Defendants other than Defendant Jones Bey.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Defendant Jones Bey will be dismissed for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). In addition, the Court will dismiss
Plaintiff’s claim under § 1983 against the MDOC. Also, the Court will dismiss Plaintiff’s RLUIPA
claims seeking monetary relief from the MDOC and Defendants Heyns, Finco, Martin, White,
Stephens, Wolfe in their official capacities. The Court will order service of the remainder of the
complaint against Defendants MDOC, Heyns, Finco, Martin, White, Stephens, Wolfe, and the
CAC.10
An Order consistent with this Opinion will be entered.

Dated:

May 28, 2014

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

10

The Court does not have sufficient information at this time to order service on the unknown members of the
CAC (“Unknown Part(y)(ies)”).

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